Deadly Force Is Authorized, but Also Trained

Transcription

1 Deadly Force Is Authorized, but Also Trained Lieutenant Colonel Mark S. Martins 1 Staff Judge Advocate 1st Armored Division Wiesbaden Army Airfield, Germany Introduction In the January issue of Naval Institute Proceedings, Colonel Hays Parks, U.S. Marine Corps Reserve (Retired), warns that restrictive and unsuitable rules of engagement (ROE) 2 today handicap and endanger U.S. forces, especially ground troops on peace-support missions. Identifying the problem as one of ignorance on the part of individual Marines, sailors, and soldiers, including service judge advocates, over when deadly force is authorized, Parks sounds an alarm that America s young men and women in uniform need to know when they may resort to deadly force to protect their lives. 3 Parks Argument Parks second-guesses assorted real-life decisions in which ground troops have refrained from opening fire, suggesting these decisions were caused by foolish ROE. In one of these examples, he derides the official commendation of a young U.S. Army sergeant whose platoon held its fire even as he and his soldiers were being struck by Bosnian Serbs bearing rocks and clubs. This situation, Parks urges, placed the soldiers in a situation where they were legally entitled to use deadly force. 4 In another example, he cites unspecified Kosovo beatings to illustrate risks faced by peace-support forces. Parks maintains that these and other instances of restraint are representative rather than isolated incidents, and he cautions that operating under bad ROEs invites mission failure, usually with fatal consequences to men and women who deserve better. 5 Parks extended argument is sweeping in scope and damning in tone. He condemns the current Joint Chiefs of Staff Standing Rules of Engagement (SROE) 6 a document that has evolved from maritime origins and contains tolerably clear guidance for commanding officers on the open seas. Parks maintains the SROE is a poor vehicle for commanders to inform individuals in port or on the ground when they may use deadly force to protect themselves and others. The lack of commanders tools in the SROE on the matter of individual self defense, he claims, combined with a propensity for micromanagement on the part of senior administration officials naïve to the bad things that can happen when force is used, has resulted in peace-support ROE that place servicemen and women at undue risk. 7 Parks further argues that military lawyers writing ROE for field commands compound the problem. They misapply international law, he says, cut and paste ROE from bogus sources, fail to read U.S. court decisions relating to use of deadly force by domestic law enforcement agents, and ignore basic truths about wound ballistics and close-quarters marksmanship under stress. Parks holds military commanders ultimately responsible, however, because they delegate ROE drafting and training to lawyers, because they hide behind ROE to avoid making tough decisions, because they rarely have the spine to stand up to civilian leaders when restrictive rules are being imposed, or because they fail to provide soldiers, sailors, and Marines sufficient firearms training to be effective in a gunfight or other violent confrontation. 8 At various points during this argument, Parks suggests curative measures. The most important of these appears to be the military s adoption with input from Navy Special Warfare 1. I thank the following people for their assistance in preparing this article: Captain Larry Gwaltney, Lieutenant Colonel Mike Ellerbe, Major Paul Wilson, Staff Sergeant Rod Celestaine, Lieutenant Colonel Bill Hudson, Colonel Dan Wright, Lieutenant Colonel Kevin Govern, Lieutenant Colonel Jeff Lau, Captain Mike Roberts, Captain Koby Langley, Major Kevin Hendricks, Colonel Dan Bolger, Colonel John Scroggins, Lieutenant Colonel Renn Gade, Lieutenant Colonel Ted Westhusing, Brigadier General Dave Petraeus, Major General John Ryneska, and Major General John Altenburg. I alone am responsible for any errors. 2. Rules of engagement are defined as Directives issued by competent military authority which specify the circumstances and limitations under which forces will initiate and/or continue combat engagement with other forces encountered. JOINT CHIEFS OF STAFF, JOINT PUB. 1-02, DOD DICTIONARY OF MILITARY AND ASSO- CIATED TERMS (19 Mar. 1998). 3. W. Hays Parks, Deadly Force Is Authorized, U.S. NAVAL INST. PROC., Jan. 2001, at 32-37, available at PROparks1.html. 4. Id. at Id. 6. CHAIRMAN OF THE JOINT CHIEFS OF STAFF, INSTR A, STANDING RULES OF ENGAGEMENT FOR U.S. FORCES (15 Jan. 2000) [hereinafter SROE]. 7. Parks, supra note 3, at SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER DA PAM

2 and Army and Marine Corps infantry representatives of a uniform deadly force policy and training system similar to that used by the Federal Bureau of Investigation (FBI). Colonel Parks contends that every young American on point for the nation should know how to defend himself when attacked. 9 Parks aims are undoubtedly noble, and his track record is that of someone who has wrestled with the predicaments faced by individual soldiers, sailors, and Marines for much of his professional life. Certainly, his recommendation for meaningful involvement by ground force commanders in top-level policy on use of force also has considerable merit. Respectfully, Sir, That s Not Quite Right Still, there is much to disagree with in Parks argument, at least as presented in Proceedings. He overstates several premises and incompletely recounts important facts. More significant, he mistakes the problem subtly but critically at its core. Individual soldiers, sailors, and Marines facing bad actors or nasty crowds get no help from legal formulas for when deadly force is authorized. The document used by the FBI and offered by Parks as a model states that the necessity to use deadly force arises when all other available means of preventing imminent and grave danger to officers or other persons have failed or would be likely to fail and that use of deadly force must be objectively reasonable under all the circumstances known to the officer at the time. 10 To know these verbal incantations is to know nothing particularly helpful in a jam. Far more important to a soldier in a firefight are those trained reactions that enable the soldier to deal with the bad actor appropriately and before the bad actor can do him harm. Far more important to a soldier facing a nasty crowd are those trained actions that produce a conditioned response and enable the unit to accomplish its task and purpose while protecting the force. The successful missions performed by thousands of brave and dedicated young Americans in the Balkans are the strongest evidence available that leaders have gone well beyond merely authorizing deadly force: They have ensured that soldiers and units are well-trained and equipped for the situations they face. Ready and Willing to Fire, if Necessary On the morning of 7 March 2001, U.S. Army soldiers moved by foot into the village of Mijak, near the border between Kosovo and the Former Yugoslav Republic of Macedonia (FYROM), with the mission of conducting a search for weapons and armed ethnic Albanian guerrillas that had been reported in the town. 11 They secured the town and began entering buildings in their search. At about 9 a.m., an armed man walked toward soldiers at an observation point. The soldiers detained him. Minutes later, five armed men departed one of the buildings under observation. The men maneuvered toward the soldier s position, took up firing positions, and oriented weapons toward the soldiers. The soldiers fired their weapons, wounding two of the men. One of the men was shot in the abdomen and in the leg. Unknown individuals dragged the other wounded man into a nearby building, and his condition remains unknown. No U.S. soldiers were injured. There was no second-guessing of the soldiers decision to shoot their armed adversaries. 12 The Mijak incident was typical of the operation. Between June 1999 and May 2000, the month when Parks was defending the honor of American military men and women in Sandhurst against ninja turtle jokes delivered by British officers, 13 American soldiers and Marines in Kosovo were executing tens of thousands of squad-sized missions, some of them deadly violent. 14 In contrast to the suggestion by Parks that U.S. forces in the Balkans are trigger shy and cowering within their shells, these data support a different picture one of seriousness and strength. 15 The soldiers who accomplished their mission at Mijak did so because they and their unit were well trained for that scenario, beginning in basic training and continuing through mission predeployment. In basic rifle marksmanship, trained first upon initial entry, periodically thereafter, and again in the weeks immediately prior to heading to Kosovo, the soldiers fired hundreds of rounds from prone and foxhole positions at popup silhouette 8. Id. at Id. at U.S. DEP T. OF JUSTICE, OFFICE OF INVESTIGATIVE AGENCY POLICIES, POLICY STATEMENT: USE OF DEADLY FORCE para. III (Oct. 16, 1995) [hereinafter DOJ DEADLY FORCE POLICY] (Commentary on the Use of Deadly Force in Non-Custodial Situations). The deadly force policy adopted by the Department of Justice resulted from leadership by the FBI to establish uniformity. See U.S. DEP T OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, ENSURING PUBLIC SAFETY AND NATIONAL SECURITY UNDER THE RULE OF LAW: A REPORT TO THE AMERICAN PEOPLE ON THE WORK OF THE FBI , 75 (1999). The Department of Treasury adopted a policy closely resembling that of the Department of Justice the very next day. See U.S. DEP T OF TREASURY, TREASURY ORDER , POLICY ON THE USE OF FORCE (Oct. 17, 1995) [hereinafter TREASURY ORDER ]. 11. Memorandum for Record, CPT Koby Langley, U.S. Army, subject: Summary of TF Airborne Infantry Regiment Direct Fire Engagement with Ethnic Albanian Armed Group (9 Mar. 2001) (on file with author) (providing details about the Mijak incident). 12. Id. 2 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER DA PAM

3 targets between fifty and 300 meters away. 16 This training prepared soldiers for success in their Kosovo mission. Close-Quarters Training: Hard But Effective Because the infantry unit was likely to be given cordonsearch, checkpoint, and similar missions in built-up areas of Kosovo, their soldiers also received many hours of close-quarters combat training before deployment. This involved repetitive and stressful training of close-quarters techniques on several Fort Bragg ranges. The soldiers mastered methods of movement, firing stances, weapon positioning, and reflexive shooting. 17 These discriminating techniques were devised with appreciation for precisely the physiological responses and wound ballistics Colonel Parks discovered at the FBI Academy. 18 Army doctrine properly touts these techniques as the most effective way to accomplish Military Operations Other Than War (MOOTW) missions that have turned violent. Such missions are accomplished while minimizing friendly losses, avoiding unnecessary noncombatant casualties, and conserving ammunition and demolitions for subsequent operations. 19 Although the soldiers at Mijak never needed it, they received training in reflexive shooting, and specifically the aimed quick kill technique, which requires the most practice. 20 It involves a departure of point of aim from center of mass, taught in basic training, to the center of the cranium. 21 Parks notes that a 13. Parks, supra note 3, at 34. Parks relates: At the American-British-Canadian-Australian Army meeting at Sandhurst in May 2000, the United States was berated constantly for its ninja turtle (heavily armed and armored, cowering within its shell) approach to peace-support operations by senior British officers, who suggested that U.S. forces were ineffective as a result of leadership timidity. It might be an unfair characterization of U.S. field commanders, who are constrained by administration-driven ROEs, but the British charges have foundation. Id. 14. About fifty incidents involved the firing of shots in the vicinity of U.S. forces. Although many of these consisted of Kosovar-on-Kosovar violence, in no fewer than twenty incidents, U.S. ground troops were attacked or threatened with deadly attack and responded by firing a variety of arms, including M16s, MK19s, and M203s. The troops fired at least 450 rounds during these incidents, and probably many more. Interestingly, not all U.S. rounds fired were shots to kill: more than twenty were warning shots, which enjoyed varying degrees of effectiveness in dispersing crowds, and more than ten were illumination rounds. Also, during an April 1999 civil disturbance in Sevce, military police fired ninety-two nonlethal M203 rounds and released two canisters of CS gas to disperse a large crowd. In all, four U.S. soldiers and Marines received minor injuries. Three assailants were killed, four were seriously wounded, and dozens were detained in these engagements. Memorandum, Commanding General, 1st Infantry Division, to Chief of Staff, Army, subject: Authorization for Wear of Shoulder Sleeve Insignia-Former Wartime Service (SSI-FWS) for Soldiers Assigned to Selected Task Force Falcon Units (25 Sept. 2000) (on file with author) (including spreadsheet describing these incidents in Kosovo). 15. Journalist Frank Viviano provided a more insightful alternative to the ninja turtle description. A visitor is immediately impressed with the conduct of the GIs in Bosnia. With their discipline, seriousness of purpose and literal sobriety. Unlike their counterparts from Britain, France, Russia and other allied nations, American soldiers are not allowed to drink alcoholic beverages in Bosnia, not even on U.S. bases.... There are no American soldiers looking for girls in Tuzla or what s left of Brcko. No drunken GIs [are] looking for fights. Frank Viviano, GIs Try to Keep Bosnia s Uneasy Peace: U.S. Soldiers Know Something Could Happen Any Time, SAN FRANCISCO CHRONICLE, Nov. 3, 1997, at A Telephone Interview with MAJ Willard Burleson, Operations Officer, 1st Battalion, 325th Airborne Infantry Regiment (Mar. 28, 2001) [hereinafter Burleson Interview] (conducted while MAJ Burleson was deployed to Vitina, Kosovo). See generally U.S. DEP T OF ARMY, FIELD MANUAL 23-9, M16A1 AND M16A2 RIFLE MARKSMANSHIP (3 July 1989) (basic marksmanship requires aiming at center of mass and mastery of sighting, breathing, and adjusting windage or elevation). 17. Burleson Interview, supra note 16. See generally U.S. DEP T OF ARMY, FIELD MANUAL , AN INFANTRYMAN S GUIDE TO COMBAT IN BUILT-UP AREAS app. K (3 Oct. 1995) [hereinafter FM ] (describing the training techniques referred to in this section of the article). 18. Parks, supra note 3, at In addition to its close-quarters combat ranges on many installations, the Army s training facilities include state-of-the art MOUT (military operations on urban terrain) towns at Fort Knox, Kentucky, Fort Polk, Louisiana, and Fort Benning, Georgia. Also, thirteen Fire Arms Training Simulators (FATS) of the type described favorably by Parks are coming on line in U.S. Army, Europe s 7th Army Training Center. Press Release, John Morelli, Firearms Training Systems, Inc. Announces Contract Award to Support U.S. Army Deployed Forces (Sept. 29, 2000). At Fort Bragg, North Carolina, two Engagement Skills Trainers (EST) were installed on 1 May An additional thirteen trainers, consisting of ten lanes each will be installed in coming months. The EST is a next-generation simulation system that replicates individual and collective marksmanship environments. from Michael Lynch, Fort Bragg Readiness Business Center, to author (Apr. 16, 2001) (on file with author). 19. FM , supra note 17, app. K Burleson Interview, supra note FM , supra note 17, app. K-1. SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER DA PAM

4 shot so placed is more likely to achieve rapid incapacitation. 22 Such a shot also avoids the protective vests that may be worn by adversaries. Early in the unit's preparation, infantry rifle squads also conducted collective live fire training on the most fundamental of battle drills React to Contact. This drill forms the nucleus of the rifle squad s collective skill set. 23 IRT, STX and Mission Rehearsal Effective training with issued weapons was part of a comprehensive predeployment training program designed specifically to ensure that soldiers could handle situations like Mijak. 24 Individual readiness training (IRT) and situational training exercises (STX) featuring uncooperative role players confronted soldiers and squads with a variety of dangerous situations, including snipers, landmines, crowd disturbances, criminal acts by Kosovars, and speeding vehicles and armed persons at checkpoints. Immediately before deployment, the unit underwent an intensive Mission Rehearsal Exercise (MRE) a heavily resourced event that culminates in individual and collective training designed to test soldiers, teams, and leaders in a stressful, Kosovo-like environment. 25 The most recent MRE, held at the Army s Joint Readiness Training Center in Louisiana, replicated the towns, movement routes, base camps, and border areas of the Multinational Brigade (East) area, that part of the Kosovo province secured by U.S. forces. In addition to reinforcing all of the individual and team tasks already trained, the MRE gave soldiers and leaders firsthand experience with interpreters speaking the Balkan languages, with civil authorities, with nongovernmental officials and private international organizations, with officers from the Polish and Greek battalions serving alongside U.S. forces in Kosovo, and with the specific demographics, economic, and security characteristics of individual neighborhoods. At the MRE, soldiers and leaders practiced not only fire and movement against ethnic Albanian armed guerrillas, but also effective use of an interpreter and negotiation based on principle. They learned not only how to call for air or artillery support, but also how to coordinate operations with international police forces in the area. The price tag: An estimated 11 million dollars. It was not cheap, to be sure, yet few who have experienced an MRE and seen how well it prepares soldiers and units to accomplish a difficult mission and come home safely doubt that it is money well spent. 26 The Standing ROE: Find Another Punching Bag Some of Parks criticism of the SROE is overdone and obscures the true nature of the challenge commanders face in providing clear guidance to ground troops on self defense. True, the SROE acknowledges U.S. commitments under the United Nations (U.N.) Charter and indeed all of its international agreements 27 because any responsible national security policy document must do so. Reasonable people, however, can disagree with Park s statement that, Nothing in the history of the Charter suggests that it was intended to apply to the actions of individual service personnel The Charter expressly incorporates previously assumed international obligations, 29 among them treaties and customary law dealing with war crimes. As a matter of international law, an individual defendant can plead self-defense to a criminal charge, just as a defendant in an excessive use of force prosecution can plead selfdefense under U.S. domestic law. 30 Thus, Parks statement is questionable. Also, regardless of personal self-defense guarantees under international law, the SROE is replete with caveats that make clear that no international obligation may be interpreted to infringe upon individual self-defense. 31 Army judge advocates expressly invoked one of these SROE caveats in late This was necessary after NATO attorneys at higher headquarters responded to a hypothetical but very possible encounter with a Mad Mortarman in Kosovo. 32 Their response that U.S. forces could not fire upon the fleeing 22. Parks, supra note 3, at Burleson Interview, supra note Id. The commander refined his mission essential task list (METL) to account for the tasks, threats, terrain, and environmental factors extant and expected in Kosovo. He and the senior noncommissioned officers in the unit ensured that training on individual tasks supported the collective tasks on the METL. The commander understood conditions on the ground in the theater of operations, because he and other unit leaders had conducted a leaders reconnaissance, poured over after-action reports provided by previous units in Kosovo, and maintained communication with leaders still in Kosovo throughout the training process. Id. This predeployment training process followed Army training doctrine. See U.S. DEP T OF ARMY, FIELD MANUAL , TRAINING THE FORCE (15 Nov. 1988). 25. Interview with MAJ Mark Gerges, XVIII Airborne Corps Assistant Operations Officer for KFOR and SFOR Missions, at Fort Polk, La. (Mar. 28, 2001). 26. The training provided at the MRE includes skills extolled by James Fyfe, an expert on training appropriate use of force, in Zuchel v. City and County of Denver, 997 F.2d. 730, 739 (10th Cir. 1993). 27. SROE, supra note 6, encl. A, para. 1c(3). 28. Parks, supra note 3, at U.N. CHARTER, pmbl, art. 1, sec SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER DA PAM

5 mortarman infringed upon the right of self-defense as captured in the SROE caveat, which states: US forces assigned to the operational control (OPCON) or tactical control (TACON) of a multinational force will follow the ROE of the multinational force for mission accomplishment if authorized by the NCA. US forces always retain the right to use necessary and proportional force for unit and individual self-defense in response to a hostile act or demonstrated hostile intent. 33 This hypothetical involves an individual who is discovered at the precise grid coordinate where a Q36 radar acquired a mortar round being fired moments earlier. The individual s actions running away from KFOR soldiers toward a nearby vehicle, carrying a mortar base plate suggest complicity in a pattern of mortar attacks over the preceding weeks on various targets from nearby points. Some of those targets were close to KFOR bases, and the attacks claimed Kosovar lives, though no KFOR soldiers were injured. 34 Army judge advocates in Kosovo correctly argued that, even though the immediate attack had ended, the individual s failure to obey commands to halt, along with his continuing ability and opportunity to fire again, constitute hostile intent sufficient to engage him with deadly force. In addition to informing higher NATO headquarters that U.S. forces would not be bound by the restrictive response of NATO attorneys (that is, suggesting U.S. forces could not fire upon the fleeing mortarman), the Army lawyers quoted the SROE and offered analogous examples from U.S. case law relating to fleeing felons. 35 It is difficult to understand Parks frustration with the selfdefense principles stated in the SROE. The SROE separates self-defense into two major elements necessity and proportionality. Necessity exists when a hostile act occurs or when a force or terrorist(s) exhibits hostile intent. 36 A proportionate response is one whose nature, duration, and scope do not exceed that which is required to decisively counter the hostile act or demonstrated hostile intent and to ensure the continued protection of US forces or other protected personnel or property. 37 When one gets past Parks apparent suspicion of the SROE as a maritime rather than a ground-force product, one strains to figure out his objection to these SROE self-defense principles. Admittedly, the term hostile intent requires elaboration and further definition through concrete examples of intent indicators, and determining proportionality is a lawyerly balancing act type that irritates laymen. Yet these are not problems unique to the SROE s formulation of individual self-defense. The FBI policy preferred by Parks also includes a version of necessity that is incomprehensible without reference to specific examples. Also, American law enforcement officers comply with an unlabeled doctrine of proportionality, because necessity only arises when all other available means of preventing imminent and grave danger to officers or other persons have failed or would be likely to fail See, e.g., UNITED NATIONS WAR CRIMES COMMISSION, XIII LAW REPORTS OF TRIALS OF WAR CRIMINALS (1949). The finding of the Court [to acquit Erich Weiss and Wilhem Mundo, tried on 9-10 November 1945 by U.S. military commission for the alleged unlawful killing of an American prisoner] is evidence that self-defence which, according to general principles of penal law is an exonerating circumstance in the field of common penal law offenses when properly established, is also relevant, on similar grounds, in the sphere of war crimes. Id. See also R.Y. Jennings, The Caroline and MacLeod Cases, 32 AM. J. INT L L. 82, 91 (1938). Id. Even Webster, in his letter of April 24, 1841, the source of the formulation of the classic definition of self-defense, says: It is admitted that a just right of self-defence attaches always to nations as well as to individuals, and is equally necessary for the preservation of both. 31. See, e.g., SROE, supra note 6, encl A, paras. 2a, 3a, 5e. 32. Interview with CPT Larry Gwaltney, Deputy Legal Advisor (Dec June 2000), Task Force Falcon, at Fort Polk, La. (Mar. 28, 2001) [hereinafter Gwaltney Interview]. 33. SROE, supra note 6, encl A, para. 1c. 34. Gwaltney Interview, supra note Id. 36. SROE, supra note 6, encl. A, para. 5f(1). 37. Id. encl. A, para. 8a(2). 38. DOJ DEADLY FORCE POLICY, supra note 10, para. III (Commentary on the Use of Deadly Force in Non-Custodial Situations). SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER DA PAM

6 Perhaps, as Parks urges, the SROE should contain the FBI policy s reminder that the reasonableness of a decision to use deadly force must be viewed from the perspective of the man on the scene who may often be forced to make split-second decisions in circumstances that are tense, uncertain, and rapidly evolving and without the advantage of 20/20 hindsight. 39 This valuable standard forecloses most second-guessing. Still, it is difficult to imagine a single scenario in which the selfdefense standard under domestic federal law differs from the self-defense standard under the SROE. 40 This notion, that by following the SROE we are sacrificing soldiers inalienable rights on the altar of international cooperation, simply does not persuade. Making a Federal Case Out of Force Continuums Parks finds appealing the federal cases and policies relating to law enforcement use of deadly force. Yet law enforcement tasks, organization, weapons, and operations are different from military ones, and domestic legal fights over police use of deadly force are raised in contexts governed by distinct constitutional and statutory provisions. The military is properly wary of borrowing too much from a law enforcement model. 41 Parks concern about what he calls the level of force continuum is understandable, but his broadside against military judge advocates is unfair. 42 He states that lawyer-inspired ROE require gradualism, yet consider these typical cautions against gradualism excluded from Parks analysis: (1) If possible, apply a graduated escalation of force. (2) Measure your force, if time and circumstances permit. (3) Omit lower level... measures if the threat quickly grows deadly. 39. This language is drawn almost verbatim from Graham v. Connor, 490 U.S. 386, (1989). 40. Though interesting as a matter of comparative legal studies, the differences in self-defense formulations between jurisdictions noted by Lieutenant Colonel W.A. Stafford, USMC, are academic distinctions on which no actual criminal convictions have turned. See Lieutenant Colonel W.A. Stafford, How to Keep Military Personnel from Going to Jail for Doing the Right Thing: Jurisdiction, ROE and the Rules of Deadly Force, ARMY LAW., Nov. 2000, at 1. The case of Corporal Banuelos, who shot and killed a civilian in Texas on 20 May 1997, is of central interest to both Colonel Parks and Lieutenant Colonel Stafford. Though grand jury investigations by Texas and the U.S. Department of Justice occurred, and though Texas law was interpreted to apply, no indictments resulted. Id. at 1-2. Parks own intervention surely helped bring about this good outcome. By its own terms, the SROE does not apply in domestic operations. SROE, supra note 6, encl. A, para. 3a. I certainly agree with Parks to the extent he is arguing that basic self-defense rules should be applied wherever a soldier is, and that soldiers and Marines should not have to learn different formulations in Texas, California, and Thailand. 41. Wariness of that model in the domestic context stems also from the traditional and statutory exclusion of the military from law enforcement duties in the United States. See 18 U.S.C (2000). 42. Historically, ground force operations orders and soldier cards have indeed included something described in Army doctrine as scale of force/challenging procedure. By the author s estimate, this rubric is one of ten functional categories of rules that have fit technically, if sometimes uncomfortably, within the official definition of rules of engagement. See Mark Martins, Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering, 143 MIL. L. REV. 1, (1994). The ten functional categories follow no rigorous format, and variations have been almost as numerous as missions and units. Yet with all of their risks and perceived advantages to commanders and staffs, they fit within the technical definition of ROE and have been issued as such in various military orders and plans since the 1960s. The ten functional categories are: Type I: Type II: Type III: Type IV: Type V: Type VI: Type VII: Type VIII: Type IX: Type X: Hostility Criteria Scale of Force/Challenging Procedure Protection of Property and Foreign Nationals Weapons Control Status/Alert Conditions Arming Orders Approval to Use Weapons Systems Eyes on Target Territorial or Geographic Restraints Restrictions on Manpower Restrictions on Point Targets and Means of Warfare These are not mere academic distinctions. Recognition that military headquarters tend to transmit ROE in these different ways is helpful in identifying the risks and benefits of including a specific type in an operations order while at the same time referring to it as a rule of engagement. In addition to taking aim at Type II, Parks also, properly, blasts Type V in his discussion of the 1986 Ranger Regiment example and in his speculation about whether the crew of the U.S.S. Cole was subjected to restrictions on carrying loaded firearms. Recognition that not all types need to be known by every soldier also recommends the packaging of the basic SROE self defense principles of necessity and proportionality, along with Types I, II, and III, into a memorable form to permit vignette training. It was this idea of packaging for a training purpose that led to the development of the RAMP training aid. See id. at In his third example, Parks excerpts a continuum of force that merely suggests techniques for the M element when confronting an unarmed and unfriendly crowd ( Measure the amount of force that you use, if time and circumstances permit ). He misleadingly makes no reference to the baseline principle. He also swaps two very different notions of the word rule that is requirement versus technique when he says that ROE require soldiers to proceed sequentially along a force continuum. Parks, supra note 3, at SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER DA PAM

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